The motion of the claimant for an order pursuant to CPLR 1101 and 1102
permitting him to proceed as a poor person and assigning him counsel is denied
and the cross-motion of the defendant for an order dismissing the claim for lack
of personal and subject matter jurisdiction is granted. The claim alleges that
claimant sustained personal injuries on December 16, 1998 when he was assaulted
by a correction officer while an inmate at the Albany County Jail. It is
further alleged that for three weeks after the assault the claimant was refused
medical treatment at the Albany County Correctional Facility as he was denied
access to sick call. The notice of intention to file a claim was served upon
the Attorney General by ordinary mail on March 8, 1999. The claim was served
upon the Attorney General by ordinary mail on April 29, 1999. The fourth and
fifth defenses asserted in the answer set forth the alleged jurisdictional
defects with the requisite specificity (Villa v State of New York, 228
AD2d 930).

Defendant seeks dismissal based upon the jurisdictional defects regarding the
manner of service of the notice of intention and claim as well as the assertion
that this Court lacks subject matter jurisdiction over torts allegedly committed
by the Albany County Sheriff and his staff. Both positions are well taken.
Service upon the Attorney General by ordinary mail requires dismissal of the
claim (Philippe v State of New York, 248 AD2d 827) as this Court does not
acquire jurisdiction to adjudicate a claim unless the claimant timely serves and
files a claim in compliance with sections 10 and 11 of the Court of Claims Act
(Selkirk v State of New York, 249 AD2d 818). Furthermore, a sheriff and
his staff are local employees not State officers within the jurisdiction of this
Court (Williams v State of New York, 90 AD2d 861; Fonfa v State of New
York, 88 Misc 2d 343). As a consequence, this Court lacks the subject
matter jurisdiction to entertain the claim. The dismissal of the claim renders
moot the requested poor person relief.

March 2, 2000Saratoga
Springs, New York

HON. FRANCIS T. COLLINSJudge of the Court of
Claims

The Court considered the following papers:

Motion for poor person relief sworn to January 5, 2000;

Affidavit of Akehaton Bradford in support of poor person relief sworn to
January 5, 2000;

Notice of cross-motion dated January 18, 2000;

Affirmation of Glenn C. King dated January 18, 2000.

Claimant's "Response to Defendant's answer" sworn to January 26, 2000.